John H. Harmon, III v. Wilber M. Brucker, Individually and as Secretary of the Department of the Army , 243 F.2d 613 ( 1957 )

PRETTYMAN, Circuit Judge.

John Henry Harmon, III, was inducted into the Army on October 31, 1952, under the Universal Military Training and Service Act.¹ In May, 1953, some questions concerning membership in and relations with the Communist Party, and similar matters, were addressed to him by Army officials. He replied under oath, answering some questions and refusing to answer others on the ground of possible self-incrimination; his answers were reduced to writing and signed by him. In February, 1954, he was notified by the Adjutant General of the Army that he should reply to certain derogatory information which had been received concerning him. This derogatory information was itemized in seven specifications, “a” to “g”. Items “a” through “d” and Item “g” concerned reported activities on Harmon’s part, Item “e” activity on his father’s part, and Item “f” activities on his stepmother’s part. Harmon replied to the items concerning himself, but as to Items “e” and “f ” he said: “It is with deepest moral indignity coupled with a devout sense of filial piety, that I refuse to answer the derogatory statements made under allegations e and f. As neither my father nor stepmother are employed in any capacity by the federal government, I am led to the conclusion that derogatory information concerning them is wholly irrelevant to the case at hand.” Thereafter Harmon was informed that his discharge as disloyal or subversive under Army Regulation 615-370 had not been favorably considered and that he would be retained in the service in his then-present grade. Shortly thereafter the Secretary of Defense issued Directive 5210.9, the purpose of which was to apply to military personnel the security programs established by Executive Order 10450, 5 U.S.C.A. § 631 note, in respect to civilian Government employees. It directed that the standard for retention within the armed services should be “that on all the available information it is determined that the * * * retention is clearly consistent with the interests of national security.” The directive was accompanied by a memorandum from the Secretary, directing that a review be made of all cases which had theretofore been cleared. Thereupon Harmon’s case was reviewed, and the Army Personnel Board found that his further retention in the service was inconsistent with the interests of national security and recommended that he be discharged with an undesirable discharge. On June 2, 1954, he was discharged as undesirable. Harmon appealed the the Army Discharge Review Board to have the character of his discharge changed from undesirable to honorable. He was given a hearing, at which he appeared, and thereafter his application for a change was denied. He applied to the Army Board for the Correction of Military Records for the change in his discharge, and that application was denied. He then made a direct request to the Secretary for award of an honorable discharge, and this request was reviewed by an Assistant Secretary, who referred it to the Board for the Correction of Military Records. Harmon declined a hearing before that Board, stating that he had no additional facts to present. He took the position that the discharge certificate must accurately and adequately reflect the character of his military service and that, inasmuch as the character of this service, as set forth in his service record, was “excellent”, he should receive an honorable discharge. The Board recommended against a change in the discharge, and the Assistant Secretary approved that recommendation.

Harmon filed a complaint in the District Court, praying that the action of the Secretary in discharging him with an undesirable discharge be declared null, void and illegal as in violation of the Constitution, the statutes, and Army regulations; and that his discharge be ordered changed from undesirable to honorable. On February 3, 1956, the District Court granted the Secretary’s motion for summary judgment, on the ground that the court lacked authority to review, control or compel the granting of particular types of discharge certificates to persons discharged from the Army.² Harmon appealed. Thereafter the Army Discharge Review Board, in the course of a general review of military personnel security cases, reviewed Harmon’s case, and the character of his discharge was changed from undesirable to general under honorable conditions. He was thereupon issued a discharge certificate reading:

General Discharge

Under Honorable Conditions from the Armed Forces of the United States of America

This is to certify that John Henry Harmon III US51 207 184 '■ Private AUS

was Discharged from the

Army of the United States on the 2d day of June 1954 under honorable conditions

[Signed] R L Richstatter R L Richstatter Captain Adjutant General’s Corps

The Secretary suggested to this court that the case thus became moot. Harmon opposed the suggestion, upon the ground that the controversy was whether he should receive an honorable, discharge. This court, on August 17, 1956, by order denied the Secretary’s suggestion of mootness.

The alleged derogatory information concerning Harmon which was incorporated in Items “a”, “b” and “c” of the initial notice of the Adjutant General concerned activities in 1951 and 1952 in a camp reported to be Communist-operated, employment in 1949 in an organization reported to be subversive, and registration in 1952 with the American Labor Party, cited by the House Committee as being under Communist control. All these alleged activities were prior to Harmon’s induction into the Army. Item “d” was that Harmon “Solicited contributions of money for the defense of persons under indictment for violation of the Smith Act.” Within a month after his induction into the Army Harmon wrote a letter to two friends, suggesting that they make a financial contribution to assist in the defense of two individuals who had been indicted under the Smith Act. Item “g” was that Harmon had been “Associated with persons who were Communists or Communist sympathizers.” In response to this item Harmon said he was not then nor had he ever been a member of the Communist Party but that in the course of appearances before many groups and audiences it was quite possible that he had known or been acquainted with Communists or their sympathizers.

In respect to Harmon’s military service the Secretary says that his (Harmon’s) service record was marked “excellent” for the periods November 12, 1952, to July 24, 1953, and from August 2, 1953, to April 24, 1954, and that for the balance of his service his record was marked “unknown” as to character and efficiency.

As the case is now before us, the questions are (1) whether the court can declare null and void the action of the Secretary in discharging Harmon with a “General Discharge Under Honorable Conditions” and (2) whether the court can order the Secretary to chang'e Harmon’s discharge from “General Discharge Under Honorable Conditions” to “Honorable Discharge”. We agree with the District Judge that the court cannot take either of such actions.

The nub of Harmon’s contention on the first question is that he is entitled to judicial review of the Army’s action. He does not contend that he could not be discharged; his complaint goes to the type of discharge given him. He was accorded all the procedural steps established by the Army regulations for the consideration and determination of the propriety of discharges from the military service. As we have pointed out, he specifically told the Army authorities that he had no further facts to present. No statute was misapplied in the process or the substance of the discharge. No statute directs or authorizes judicial review of Army discharges. Indeed the statute provides that decisions of the Army boards shall be final.³ Thus Harmon’s argument must rest upon constitutional grounds: that as a matter of due process of law or by some other constitutional requirement he was entitled to court review of the type of discharge which he should be given.

The Constitution provides that the President shall be Commander in Chief of the Army and Navy of the United States⁴ and that Congress shall have power to make rules for the government and regulation of the land and naval forces.⁵ Title 10 of the United States Code clearly expresses a Congressional intent that the Army be administered solely by the executive branch of the Government.⁶ The statute in effect at the time of Harmon’s discharge provided⁷ that “No enlisted person, lawfully inducted into the military service of the United States, shall be discharged from said service without a certificate of discharge, and no enlisted person shall be discharged from said service before his term of service has expired, except in the manner prescribed by the Secretary of the Department of the Army, or by sentence of a general or special court-martial.” (Emphasis ours.) Throughout our history the Articles of War and similar statutes have entrusted to the Secretary of War and his agents the granting of certificates of discharge.⁸ The statute which authorized the Secretary to establish a board to review the types and natures of discharges specifically provided that the findings of such a board should be “final subject only to review by the Secretary of the Army”.⁹ The courts have held many times that they have no power to review the administrative processes by which the President and the Secretaries administer the affairs of the Army, and this doctrine has extended to the nature of discharges from the service.¹⁰ On this subject we said (in Gentila v. Pace:¹¹

“We think Congress intended that the Board’s [the Army Discharge Review Board’s] full and ‘final’ review should not be subjected to a further review, or series of reviews, in the courts. We may suppose that Congress considered the heavy burden that would be imposed upon courts if they were required to review the findings upon which Army discharges are based. As the Supreme Court has said in regard to a type of dispute for which the Railway Labor Act [45 U.S.C.A. § 151 et seq.] provides, the ‘intent seems plain — the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.’ Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 305, 64 S.Ct. 95, 99, 88 L.Ed. 61.”

It is said that the foregoing statement was dictum. Whether that be so or not, we think the statement is correct. We adhere to it and adopt it for application here.

The import of the opinion of the Supreme Court in Orloff v. Willoughby¹² is the same as that of the opinions we have cited. There a physician inducted into the Army under the Doctors Draft Act¹³ refused to state whether he was a member of the Communist Party. Because of this refusal he was not commissioned or given the duties of an Army doctor. He applied to a federal court for habeas corpus and for a discharge. He urged that it had been a uniform practice to commission Army doctors and, furthermore, that his induction under the Doctors Draft Act contemplated and required that he be given a commission. The Supreme Court held that the courts have no power to review such a matter, which fell within the executive duties of the President and the Army. The Court observed:

“We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service.”¹⁴

Reason and the practicalities dictate the rule which we have found in the cases. Reason, flowing from the doctrine of the separation of powers, dictates that in many fields the administrative discretion of the executive branch and the legislative discretion of the legislative branch be not subject to interference or review by the courts. In no field is this doctrine more pertinent and important than in the operation of the armed forces. Provisions for the establishment and operation of such forces necessary to the security of this country are wholly legislative matters, and the administration of those forces is the very essence of executive action. The Constitution so provides. Only in the most extreme cases can the judiciary interfere in this area. As a practicality the operation of military forces requires expeditious, sometimes instant, action and thus requires discipline. From the standpoint of the Army it is easy to see the disastrous effect upon discipline if the type of discharge which could be given an enlisted man were not within the power of his commanding officer or the Secretary, but were subject to litigation and to review and decision by a court wholly removed from the necessities of military affairs. As a further matter of practicality, from the standpoint of the courts review of such matters would impose an appalling burden, with which the courts are wholly unequipped to cope.

Harmon’s insistence is that the type of discharge given him must be determined by the character of his military service and without regard to pre-induction events, activities, etc. But that is not our question. Our question is not what type of discharge he ought to be given; it is whether a court can review and determine the type of discharge. Harmon says a court can and must do so. To reach that conclusion a number of propositions are suggested.

The first such proposition concerns procedural due process. Harmon was given an opportunity to reply to the alleged derogatory information and was then issued a discharge. Thereafter he was given a hearing before the Army Discharge Review Board. He appealed that Board’s adverse decision to the Army Board for the Correction of Military Records, again without success. Later, in connection with a direct appeal to the Secretary, he was offered a second hearing, which he declined. Harmon was thus given the full measure of procedural rights afforded by the Congress for persons in the military service. The Supreme Court held in Reaves v. Ainsworth; ¹⁵ “Besides, what is due process of law must be determined by circumstances. To those in the military or naval service of the United States the military law is due process. The decision, therefore, of a military tribunal acting within the scope of its lawful powers cannot be reviewed or set aside by the courts.”

Harmon urges that the Army violated Directive 5210.9 by failing to give him a hearing. He was notified on May 26, 1954, of his proposed discharge. The Directive provides “an opportunity 'upon request to present any cause why he should not be so separated.” Harmon made no such request. Later, as we have pointed out, he was afforded a hearing before the Review Board. The requirements of procedural due process were fully met. ,

We find no question of substantive due process. The consideration of pre-induction activity was not frivolous, arbitrary or discriminatory; it was based upon reasonable grounds. Activity in the Communist movement involves participation in a conspiracy dangerous to our national security. Surely the Army cannot be compelled to retain a security risk in its service. Surely the President may apply to military personnel the same program and policies as to security and loyalty which he applies to civilian personnel in sensitive positions in the Government civilian service.¹⁶ Harmon does not contend that he could not be separated from the service because of pre-induction conduct. If that be so, if he can be discharged as a security risk, the Army can determine whether he is or is not a security risk. And in that determination surely no data is more relevant and material than are his past habits, activities and associations. Such data is universally the material from which a determination of character or suitability is made, if indeed it is not the only material from which it can be made. The Army, in making that determination, was not trying to find him guilty or not guilty of some act or offense. It was trying to determine his character as a security risk vel non and his consequent suitability for Army service. If it could make that determination, as admittedly it could, and upon that basis could determine whether a man was suitable for any service whatsoever, it could include that consideration among the factors to be considered in determining the value of his service and, consequently, in selecting the type of discharge to be given him. Moreover it is reasonable for Army authorities to believe that a security risk is not usable for many types of military service required of other soldiers, and that factor may well affect the value of the military service of such a person and, consequently, the type of discharge given him.

An honorable discharge from the Army is, as Harmon claims it is, a mark of distinction. The courts cannot dictate to the Army that it must give this mark to an enlisted man when it finds, on the basis of pre-induction activities, that his presence in the armed forces is not consistent with the national security.

It is suggested that a general discharge under honorable conditions imposes a “stigma” and so is punishment. Punishment, it is said, cannot be inflicted without judicial scrutiny. The Army can impose punishment, even the punishment of death, without judicial review.¹⁷ Moreover the type of a discharge is not punishment in the sense that judicial process is required. No finding of guilt, no loss of liberty are involved. The penalty is the same as that which results from many unhappy experiences. Consideration of such “penalties” must begin in perspective. A discharge from civilian, commercial employment carries penalties in a real sense — stigma, loss of pay, difficulty in subsequent employment; but no one would suggest that an employer cannot discharge an employee without judicial scrutiny. A civilian employee of the Government can be dismissed upon charges of a criminal offense without judicial review.¹⁸ The courts do not interfere in such matters. When the same “penalties” arise from action of military authorities, they do not thereby become “punishment” necessitating judicial action.

Stigma attaches on rejection from military service as a security risk. Indeed, if one be rejected entirely, on account of being a security risk, the adverse effects are greater than upon receiving a General Discharge Under Honorable Conditions. Many benefits attach to status under the latter which do not attach to rejection. And the intangibles of stigma attach in either event. Nevertheless it certainly cannot be urged that the Army may not reject, without judicial review, as a security risk one registered for service.

It is suggested that an honorable discharge is of so great value that a man can be denied one only if he be afforded a right to judicial review. To hold to that effect would be to vitiate the whole discharge process provided by the Secretary.¹⁹ The courts have no authority to take such action. They cannot arrogate to themselves supervisory authority over the Army. Apt on this point is another quotation from Reaves v. Ainsworth, supra. The Supreme Court said:

“The courts have no power to review. The courts are not the only instrumentalities of government. They cannot command or regulate the army. To be promoted or to be retired may be the right of an officer, the value to him of his commission, but greater even than that is the welfare of the country, and, it may be, even its safety, through the efficiency of the army. * * * If it had been the intention of Congress to give to an officer the right to raise issues and controversies with the board upon the elements, physical and mental, of his qualifications for promotion and carry them over the head of the President to the courts, and there litigated, it may be, through a course of years, upon the assertion of error or injustice in the board’s rulings or decisions, such intention would have been explicitly declared. The embarrassment of such a right to the service, indeed the detriment of it, may be imagined.” ²⁰

There is a margin of value of an “Honorable Discharge” over a “General Discharge Under Honorable Conditions”. But a considerable measure of value is involved in a Government job, such as was involved in Williams v. Cravens,²¹ and in the rights of a contractor, such as were involved in Larson v. Domestic & Foreign Corp.,²² and in a public utility business, such as was involved in Kansas City Power & Light Company v. McKay.²³ Yet in all these instances the holders of the rights were deprived of them without court review.

It is suggested that the consideration of pre-induction happenings is in conflict with the traditional policies of the Army. Most certainly we cannot order the Army to adhere to traditional practices. The armed forces in 1953-54 faced many new problems not involved in the operation of the military services of the 1770’s, or the 186Q’s, or in 1917-18, or even in the early 1940’s. Activity in the Communist movement now involves a possible conspiratorial participation dangerous to the security of this country. The efforts of this movement to infiltrate all parts of the Government pose new problems, which must be met with new rules and regulations.

Harmon argues that the pre-induction events considered by the Army were political opinions and so could not validly be considered under the First- Amendment. Activity in the world Communist movement has long since passed the boundaries of mere political opinion. It may well make a man a security risk, and, as we have pointed out, the courts cannot compel the Army to retain in its service a security risk.

We come now to the second of Harmon’s prayers, that the court direct the issuance to him of an honorable discharge. It is settled beyond question that the courts will not direct by mandamus any executive action which lies within the realm of executive discretion.*²⁴ This is a rule of law quite apart from the peculiar insulation of Army affairs from judicial scrutiny. Harmon’s prayer that the court direct the issuance to him of an honorable discharge is certainly a prayer for mandamus, and certainly the Congress has lodged within the area of executive discretion the selection of types of discharges to be given military personnel. So this prayer in Harmon’s complaint does not lie within the jurisdiction of the court under the general rule applicable to all types of executive action. Even if such a prayer for mandatory direction ran only to a civilian matter which had none of the elements of a military affair, the courts would have no authority in respect to it.

Affirmed.

1 . 62 Stat. 604 (1948), 65 Stat. 75 (1951), as amended, 50 U.S.C.A.Appendix, § 451 et seq.

2 . Harmon v. Brucker, D.C., 137 F.Supp. 475 (1956).

3 . Act of June 22, 3944, 58 Stat. 288, as amended, 38 U.S.O.A. § 6931i.

4 . Art. II, § 2, cl. 1.

5 . Art. I, § 8, cl. 14.

6 . 10 U.S.C. § 3012 (3956) [formerly 5 U.S.C.A. § 181-4, 64 Stat. 264 (1950).

7 . 41 Stat. 809 (1920), as amended, 10 U.S. C.A. § 652a (Supp. 1956) [now 10 U.S. C. § 3811 (1956)].

8 . Winthrop, Military Law and Precedents 547, 931, 933, 961, 972 (2d ed. 1920) ; Act of April 10, 1800, 2 Stat. 359, 361; Rev.Slat. § 1342, Art. 4 (2d ed. 1878); Sec. 4(b), Selective Service Act of 1948, 62 Stat. 606, as amended, 50 U.S.C.A. Appendix, § 454(b).

9 . Supra note 3.

10 . United States v. Eliason, 16 Pet. 291, 41 U.S. 291, 301-302, 10 L.Ed. 968 (1842) ; Reaves v. Ainsworth, 219 U.S. 296, 304, 306, 31 S.Ct. 230, 55 L.Ed. 225 (1911), affirming 28 App.D.C. 157 (D.C.Cir. 1908) ; Creary v. Weeks, 259 U.S. 336, 42 S.Ct. 509, 66 L.Ed. 973 (1922); French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965 (1922); Reid v. United States, 161 F. 469 (D.C.S.D.N.Y.1908), writ of error dismissed, 211 U.S. 529, 29 S.Ct. 171, 53 L.Ed. 313 (1909); Davis v. Woodring, 72 App.D.C. 83, 111 F 2d 523 (D.C.Cir.1940) ; Schustack v. Horren, 234 F.2d 134 (2 Cir. 1956); Nelson v. Peckham, 210 F.2d 574 (4 Cir. 1954); Bernstein v. Herren, 136 F.Supp. 493 (D.C.S.D.N.Y.1955), Id., 141 F.Supp. 78 (D.C.S.D.N.Y.1956), affirmed 234 F.2d 434 (2 Cir. 1956) ; Weeks v. United States, 51 App.D.C. 195, 277 F. 594 (D.C. Cir.1922), affirmed sub nom. Creary v. Weeks, 259 U.S. 336, 42 S.Ct. 509, 66 L.Ed. 973, (1922); Marshall v. Wyman, 132 F.Supp. 169 (D.C.N.D.Cal.1955); Nordmann v. Woodring, 28 F.Supp. 573 (D.C.W.D.Okl.1939); McKenzie v. Kirkpatrick, 141 F.Supp. 49 (D.C.N.D.Cal. 1956).

11 . 90 U.S.App.D.C. 75, 77, 193 F.2d 924, 927 (1951), certiorari denied, 342 U.S. 943, 72 S.Ct. 556, 96 L.Ed. 702 (1952).

12 . 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953).

13 . 64 Stat. 826 (1950), 50 U.S.C.A.Appendix, § 454(i).

14 . 345 U.S. at pages 93-94, 73 S.Ct. at page 540.

15 . 219 U.S. 296, 304, 31 S.Ct. 230, 55 L.Ed. 225 (1911). And see Burns v. Wilson, 346 U.S. 337, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).

16 . See Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956); cf. Jason v. Summerfield, 94 U.S.App.D.C. 197, 214 F.2d 273 (D.O.Cir.1954), certiorari denied 348 U.S. 840, 75 S.Ct. 48, 99 L.Ed. 662 (1954).

17 . Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).

18 . See, e. g., Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140 (1921).

19 . On March 18, 1954, Robert T. Stevens, then Secretary of the Army, told the Senate Armed Services Committee: “When the evidence fails to show that he is disloyal, or is subversive, hut does establish that he is otherwise a security risk and should be eliminated, he is separated under honorable conditions, usually with a general discharge.” Hearings on S. 3096, 83d Cong., 2d Sess. 75.

20 . 219 U.S. at page 306, 31 S.Ct. at page 234.

21 . 93 U.S.App.D.C. 380, 210 F.2d 874 (D.C.Cir.1954), certiorari denied Williams v. Robbins, 348 U.S. 819, 75 S.Ct. 30, 99 L.Ed. 646 (1954).

22 . 387 US. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

23 . 96 U.S.App.D.C. 273, 225 F.2d 924 (D.C.Cir.1955), certiorari denied 350 U. S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955).

24 . Anderson v. McKay, 94 U.S.App.D.C. 11, 211 F.2d 798 (D.C.Cir.1954), certiorari denied 348 U.S. 836, 75 S.Ct. 51, 99 L.Ed. 660 (1954). See discussion and cases cited in Clackamas County, Or. v. McKay, 94 U.S.App.D.C. 10S, 219 F.2d 479 (D.C.Cir.1954).